Coal Tattoo

Blankenship jury goes home for the day

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship leaves the Federal Courthouse on Thursday during a break for lunch.

Photo by F. Brian Ferguson

We’re all just back from the Robert C. Byrd United States Courthouse, where the jury in the Don Blankenship criminal trial has gone home for the evening.

Jurors left shortly before 5 p.m., after sending a note to U.S. District Judge Irene Berger saying they were ready to stop for the night.

Judge Berger told jurors to return at 9 a.m. tomorrow to resume their deliberations.


This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Shortly after U.S. District Judge Irene Berger received a note from jurors today, asking how long they should deliberate, Don Blankenship’s defense attorneys filed an emergency motion pertaining to jury instructions.

This morning Berger ordered the jury to continue deliberating, saying with the length of the case, the number of witnesses and the fact that jury had only been deliberating for about 10 hours, they should continue the process.

In their emergency motion, the defense is seeking Berger to clarify her orders to the jury. Here’s what they want the judge to say:

“I wish to follow up on my instruction before lunch to continue your deliberations. As I instructed you previously: [I]t is your duty as jurors to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict – whether guilty or not guilty – must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all of the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussions persuade you that you should. But do not come to a decision simply because other jurors think it is right or simply to reach a verdict.”

As of this writing, the government has yet to respond to this emergency motion.

During the 11:45 a.m. meeting, Berger said she found it unnecessary to have to clarify to jurors what she wants them to do – namely continue deliberations. The defense argued that they wanted the judge to clarify that the jury is not forced to reach a decision if they can’t make one.

The jury in the Don Blankenship case was told to continue deliberating after telling the judge this morning that it “cannot agree” on a verdict.

U.S. District Judge Irene Berger said she received a note at about 11:30 a.m. from the jury that said, “How long do we deliberate? We cannot agree.”

Berger told the jurors that given the length of the trial, the number of witnesses and the limited amount of time they had so far deliberated, that she wanted them to continue their deliberations.

After giving the jury that order in open court, the judge released the eight women and four men for lunch shortly before noon.

Berger denied a request from defense lawyer Bill Taylor for a mistrial.

Jurors in the Don Blankenship trial resumed their deliberations this morning trying to reach a verdict on the three felony counts against the former Massey Energy CEO.

The eight woman and four man jury returned to the Robert C Byrd United States Courthouse today at 9 a.m. to begin its third day of deliberations.

Jurors met for about an hour Tuesday and a little more than six hours on Wednesday.

This morning, jurors reported directly to their private jury room, adjacent to U.S. District Judge Irene Berger’s courtroom. Unlike on Wednesday, court security had the courtroom open and media representatives and other trial spectators – including families of the miners who died in the 2010 Upper Big Branch Mine disaster that killed 29 miners – were allowed in.

Berger told lawyers in the case on Wednesday that the court would alert them if jurors reached a decision or sent the judge a substantive note.

R. Booth Goodwin, Steve Ruby

When he got the last word in the Don Blankenship trial’s closing arguments, Assistant U.S. Attorney Steve Ruby told jurors he could summarize the government’s case against the former Massey Energy CEO in six sentences. Here they are, from the transcript we posted online:

  1. The Upper Big Branch mine sadly was the site of hundreds of serious preventable safety violations, including the most unwarrantable failure orders of almost any coal mine in America.
  2. The defendant knew that the Upper Big Branch mine was continually breaking the mine safety laws and that it was one of the worst mines in all of Massey for safety violations.
  3. The defendant, the chief executive officer and the chairman of the board of Massey, had it completely within his power, completely within his power to put a stop to the vast majority of the safety violations at UBB if he was willing to spend a little bit more money and take a little bit more time to devote to following the safety laws.
  4. Instead, he chose, he chose to keep on breaking the mine safety laws at UBB, not just allowing it, not just sitting passively by while the laws were broken, as if that wouldn’t be bad enough, but taking actions and imposing policies and denying requests that he knew were going to cause the constant law-breaking that existed at that mine to continue.
  5. And the reason that he did it was money, millions and millions of dollars for him, hundreds of millions of dollars for Massey, millions for the “yes” men that he surrounded himself with.
  6. And when tragedy happened and he found the eyes of the world on him and his safety practices, he lied about it to cover it up and to keep the money machine going a little longer.
Blankenship day 22 photo

While we wait for the jury in the Don Blankenship case to reach a verdict, it might be interesting to review some of the major points that both sides made in presenting their closing arguments to those jurors.

For example, lead defense lawyer Bill Taylor rattled off a list of examples of what he told jurors should raise a “reasonable doubt” about whether Blankenship is guilty. Here are those examples, mostly from memos entered into evidence in the case, that Taylor said raise reasonable doubt about whether Blankenship intended for Massey to violate safety laws:

— July 25, 2008, from Don Blankenship to Chris Adkins. “It’s important that we make sure we are recognizing the new MSHA rules and designing our mine plans to be efficient within those rules rather than mining and setting up the sections the way we used to and complaining that MSHA won’t do what they won’t let us do.”

— This is a memo from Elizabeth Chamberlin to other people in which she says, “Effective immediately individual mine safety meetings are to include a review of citations and orders, should focus on the reduction of orders and S&S violations and address individual accountability.” He writes on it, “Elizabeth, thanks. Don.”

— Elizabeth Chamberlin to Mr. Blankenship, August 10, 2008. “I intend to make changes in the management of the Marfork/Performance safety program shortly.” Mr. Blankenship writes back and you can see in the bold at the bottom. “We need to improve. So whatever is necessary needs to be done. However, these issues seem to go from group to group. Be fair with safety people when they’re having a bad run. Again, do what you and Chris agree is best.”

— Don Blankenship to group presidents, January 19, 2009. “I am aware that MSHA has changed their rates and tightened up their inspections, but I had no idea we were not dealing with the issue in our day-to-day operations. It seems that we perhaps have turned this into a legal dispute as opposed to dealing with it at the mines. Everyone should drop what you are doing and figure out what your violation circumstances are. Obviously, what we are doing now is not going to work.”

— These are handwritten notes that Mr. Blankenship writes on a message that he gets about citations in the spring of 2009. In his own typical style, “The only thing more frightening to our future than the regulators is us. I am very, very disappointed that you all don’t step up on your relative pieces of this. Learn to fish.” And then he writes to John Poma, Chris Adkins, and Mark Clemens. “I remain frustrated that those who should measure, manage, and eliminate violations will not provide executive-level communication. This is not about multi-page, detailed, shaded, microscopic reports to me. It’s about executive management of a new and frightening challenge.”

— March 20, 2009, Blankenship to Adkins further on violations. “This memo is just thoughts about how we could deal with it. The essence of it is that our mines have to be better managed and that we have to elevate the level of concern from the superintendents down through the mine foremen, fire bosses, and back up to and including the group presidents with violation reduction,” and so forth, “to fill out whether we should have a team of inspectors. As you can see in this memo, I’m just brainstorming in an effort to help you get your thoughts together. Let’s not get bureaucratic, but let’s get effective and primarily let’s do it yesterday.”

— Don to group presidents relating to respirable dust violations: “Group presidents, you have to develop a plan to deal with this and other problems. Have processes, meetings, learn from Massey Coal Services processes. Do your jobs.”

— This is the memo that is written to Mr. Blankenship about the Hazard Elimination committee, its formation and its kick-off, and its goals. It’s written by Chris Adkins. And Paragraph Number 4 which we’ve blown up here is the one I wanted you to look at. And at the bottom he’s telling Mr. Blankenship who’s going to be in charge of what. And then he says, “Each will mark where we are now and submit as to how we are going to reduce the violations within their area by 20 percent.” And somebody strikes through “20 percent” and writes “50 percent by year end versus first half run rate.”

Do you know who that person was? It was Donald Blankenship.



Jury wants to hear Blankenship calls again

Blankenship phone

Photo by Joel Ebert

We’re just back from the Robert C. Byrd United States Courthouse, and the news is that the Don Blankenship jury has gone home for the evening … But not before they asked if they could listen again to the recordings of Blankenship’s phone calls that were played by prosecutors during the trial.

Sometime after 4 p.m., U.S. District Judge Irene Berger apparently received a note from the jurors. By about 4:40 p.m., prosecutors, defense lawyers and Blankenship — along with the media and families of Upper Big Branch miners — had gathered in the courtroom. Court security brought in the jury and Judge Berger came in at about the same time.

Judge Berger then informed the parties that she had received a note from jury foreperson Pam Carte that asked, “Can we listen to the CDs? Can we leave at 5 p.m.?”

After conferring briefly, the jurors then agreed that they would go ahead and recess for the evening then, rather than waiting until 5 p.m.

Judge Berger said that she would arrange for the jurors to be “provided a means to listen to the CDs.” Assistant U.S. Attorney Steve Ruby suggested that court technology staff could provide the jurors with equipment, or that the government could provide a “clean” laptop — without other files on it — that the jury could use to listen to the telephone calls, which are in MP3 or WAV format, depending on the particular call.

Defense lawyer Bill Taylor said that Blankenship’s team would prefer that the court provide the equipment, rather than the prosecution. Judge Berger said she would inquire of the court staff and see if that could be done.

Jurors are due back tomorrow at 9 a.m. to resume their deliberations. Judge Berger said there was no need for attorneys in the case to report to the courtroom until they hear something from the jury. “I will simply call you if I hear something substantive,” the judge told Taylor.

The latest from the federal courthouse is that jurors in the Don Blankenship case have taken a break for lunch.

U.S. District Judge Irene Berger released the 12-person jury at about 11:50 a.m. and asked them to return at 1:10 p.m. to resume their deliberations.


F. BRIAN FERGUSON | Gazette-Mail Don Blankenship, center, makes his way into U.S. Federal court on Tuesday morning.
Photo by F. Brian Ferguson

With closing arguments completed yesterday afternoon (we’ve posted the transcript here) and jurors in the Don Blankenship trial scheduled to be back at the courthouse at 9 a.m. today to resume their deliberations, it’s as good a time as any to briefly run remind ourselves of the charges — and talk a little bit about the form the jury will use to announce its verdict.

You can read the superseding indictment here.

From yesterday’s jury instructions (also included in the posted transcript), here’s how U.S. District Judge Irene Berger described Count One of that indictment:

The defendant, Donald L. Blankenship, is charged in Count One of the superseding indictment with unlawfully, willfully, and knowingly conspiring with others between January 1st, 2008, and April 9th, 2010, to willfully violate mandatory federal mine safety and health standards at Upper Big Branch in violation of Title 30, United States Code, Section 820(d) and Title 18, United States Code, Section 371; and to defraud the United States and an agency thereof in violation of Title 18, United States Code, Section 371.

This is the count that basically alleges Blankenship conspired to violate federal mine safety and health standards and conspired to thwart U.S. Mine Safety and Health Administration inspections.

Here’s how Judge Berger described Count Two:

Count Two of the superseding indictment charges that on or about April 8th, 2010, in the Southern District of West Virginia and elsewhere, the defendant, Donald L. Blankenship, aided and abetted by others known and unknown to the grand jury, knowingly and willfully made materially false, fictitious, and fraudulent statements and representations, and knowingly and willfully made and caused to be made and used a false writing and document knowing the same to contain materially false, fictitious, and fraudulent statements and entries in a matter within the jurisdiction of an agency of the executive branch of the Government of the United States, that is, the Securities and Exchange Commission, in violation of Title 18, Section 1001 and 2.

And here’s how the judge described Count Three:

Count Three of the superseding indictment charges that from on or about April 7th, 2010, through on or about April 9th, 2010, the defendant, Donald L. Blankenship, aided and abetted by others known and unknown to the grand jury, did directly and indirectly, by means and instrumentalities  of interstate commerce, and by means of the mails and of the facilities of national securities exchanges, did make and cause to be made untrue statements of material fact, and did omit to state and cause to be omitted to state material facts necessary in order to make the statements made in the light of the circumstances under which they were made not misleading, and did engage in acts and practices and courses of business which operated and would operate as frauds and deceits upon persons, all in connection with the sale and purchase of securities, to-wit: Massey Class A Common Stock, in violation of Title 15, United States Code, Section 78ff Title 17, Code of Federal Regulations, Section 240.10b-5; And Title 18, United States Code, Section 2.

Counts Two and Three focus on those statements that were issued after the Upper Big Branch Mine Disaster that said Massey Energy did not condone safety violations and strove to comply with all laws at all times.

Continue reading…

Jurors released for the day

U.S. District Judge Irene Berger released the 12-member jury shortly before 5 p.m. today in the criminal trial of Don Blankenship.

Jurors have been instructed to return 9 a.m. tomorrow when they will continue their deliberations.

Jurors in the Don Blankenship case were told late this afternoon to begin their deliberations. U.S. District Judge Irene Berger released the jury to begin its closed-door work shortly before 4 p.m., after a day’s worth of closing arguments in the case against the former Massey CEO.

Three female alternate jurors were dismissed and will not have to sit through daily deliberations, but could be called back if they are needed. Twelve jurors are left to decide Blankenship’s fate.

Lead defense attorney Bill Taylor this afternoon continued his closing argument, telling jurors over and over that federal prosecutors haven’t made their case against former Massey Energy CEO Don Blankenship.

Taylor also argued that evidence the defense brought out through its cross-examination of government witness should prompt jurors to acquit Blankenship.

For example, Taylor cited former Massey insider Bill Ross’s testimony that he met with Blankenship and believed the former CEO was genuinely concerned about reducing violations.

“Bill Ross is Exhibit A that Don Blankenship is innocent,” Taylor said as he finished his closing following a lunch break for jurors.

Taylor also argued that Blankenship should not be held responsible for a longstanding practice of coal mine guards of alerting workers underground when government inspectors arrived.

“The government wants you to convict Don Blankenship just because the practice of advance notice exists,” Taylor told jurors. “It takes this piece of coal mining culture and wants you to convict Don Blankenship because of it.”

Taylor also argued that it was not a crime for Blankenship to not believe that hiring more miners was the answer to the Upper Big Branch Mine’s safety problems. “How many more was he supposed to hire to not be a criminal?”


Lead defense lawyer Bill Taylor told jurors late this morning that federal prosecutors have no evidence that proves the charges against ex-Massey CEO Don Blankenship.

Taylor said prosecutors may have shown that Blankenship pushed for more coal production, was tough to work for, and made himself and Massey a lot of money.

“If it’s true that he made a lot of money, and he worked for a company that made a lot of money, he’s guilty — I’m wasting your time,” Taylor said.

Taylor began his closing arguments shortly before noon as the jury heard lawyers from both sides summarize their cases.

He led by showing jurors quotes from two key government witnesses — former Massey officials Chris Blanchard and Bill Ross — who provided testimony helpful to the defense. Taylor also belittled testimony from another government witness, David Hughart, saying Hughart came to court from a “halfway house” and made a deal with the government to avoid being prosecuted for stealing from Massey.

Also, Taylor chided the government for not bringing federal mine inspectors to court to testify about citations issued to Massey. He noted that the government got key citations into evidence through the testimony of a U.S. Mine Safety and Health Administration computer data analyst.

“The paper is what the government has brought you to prove that Don Blankenship is guilty of conspiracy,” Taylor said.

He said the case against Blankenship is weak, based only on a collection of “maybes.”

“In this country, we don’t convict people — rich or poor — based on maybes,” he said. “It requires proof.”

Jurors in the Don Blankenship criminal trial took a brief break this morning after U.S. Attorney Booth Goodwin completed the first portion of the government’s closing argument.
The jury will hear next from lead defense lawyer Bill Taylor.

In his closing, Goodwin tried, among other things, to reduce the impact of testimony that former Massey official Chris Blanchard, a government witness who provided much helpful testimony to the defense during his cross examination.

Goodwin referred to Blanchard repeatedly as one of the “yes men” who did Blankenship’s bidding. Goodwin also said Blankenship was obsessed with “flashy things” — like reflective clothing for miners — more than spending money on miners to keep up with safety laws.

Inside the courtroom, the gallery remained at full capacity. People who were trying to get in and watch were directed to an overflow room with a televised video feed of the proceedings. That room contained about 20 people at one point, including U.S. District Judge Joseph R. Goodwin, Booth Goodwin’s father.

Booth Goodwin took about an hour and 15 minutes of the two hours allotted to the government for closing arguments, saving 45 minutes for rebuttal.

U.S. District Judge Irene Berger this morning began instructing jurors in the Don Blankenship case about the law that applies to the criminal charges against the former Massey Energy CEO.

Berger started reading the lengthy instructions to jurors shortly after they were brought into the courtroom at 9 a.m.

Among other things, the judge reminded jurors that Blankenship was not charged with causing the April 2010 explosion that killed 29 miners at Massey’s Upper Big Branch Mine.

“Neither the cause of nor the responsibility for the explosion is at issued in this care,” Berger told jurors in a packed courtroom.

While the judge gave jurors a complex set of instructions about conspiracy and securities laws, she told jurors it is up to them to decided which evidence – testimony and exhibits – they believe to be true.

“The facts are for you the jury to decide,” the judge said.

Berger also instructed jurors that any agreement to join a conspiracy – such as the one Blankenship is accused of – can be agreed to “tacitly.”

Blankenship defense rests without calling witnesses

Don Blankenship’s defense team rested its case this morning without presenting any of its own witnesses.

“Ladies and gentlemen of the jury, the defense rests,” lead defense lawyer Bill Taylor said, following a bench conference after the government rested its case.

U.S. District Judge Irene Berger dismissed the jury for the day and told lawyers to report back to the courthouse at 1:30 p.m. when she plans to announce to both sides her instructions to the jury.

The jury was told to report back at 9 a.m. Tuesday.

The federal government was preparing this morning to rest its case against former Massey Energy CEO Don Blankenship.

F.B.I. Special Agent Jim Lafferty, the government’s 27th and last witness, was excused after U.S. District Judge Irene Berger told defense lawyers they could not use their cross-examination of Lafferty to get into evidence more recordings of Blankenship’s phone calls.

Berger held more than an hour of argument this morning about the defense’s efforts to play for the jury phone call recordings the defense believes depict Blankenship’s concerns about safety issues. Berger told the defense they would need to try to get the calls into evidence through a different witness.

Lead defense lawyer Bill Taylor later this morning objected when the government sought to admit into evidence a collection of minutes from Massey board of director’s meetings. Taylor said the government should have to produce a witness who could describe what happened at the meetings so that the defense could cross-examine that witness.

“This is trial by paper,” Taylor said. Berger ruled against Taylor’s request.

At about 9:30 a.m. the judge took a break so that the defense team could make final preparations to begin its case once the jury is brought in to the courtroom.

‘Housekeeping’ day in the Blankenship case


Photo by Joel Ebert

U.S. District Judge Irene Berger’s courtroom was pretty empty today … there was the judge, lawyers for the prosecution and Don Blankenship’s defense, a few court staff and a much smaller contingent of local press. The jury had the day off, but Judge Berger had the lawyers come in for a day of “housekeeping.”

A few of the highlights:

— Judge Berger turned down a variety of proposals from defense lawyer Eric Delinsky aimed at forcing the government to produce FBI Special Agent Brent Stanze to reappear to help the defense “authenticate” the telephone recordings of Blankenship’s that it wants to play for the jury.  Stanze had appeared back on Day 3 of the trial in early October, and testified about how he went through copies of the recordings provided to the government by Alpha Natural Resources (after Alpha bought Massey Energy) and compared them to calls from the actual recording devices (see this exhibit) to ensure they were authentic. Assistant U.S. Attorney Steve Ruby argued — and Judge Berger agreed — that the defense has to somehow authenticate its recordings, but can’t use a government witness to do it.

Delinsky made a variety of arguments about all of this — he said the government had never disclosed it had the recording devices prior to trial, that the trial needed to be delayed to give the defense time to find someone to authenticate its calls, or that one of the defense lawyers themselves might have to appear as a witness to do so. In the end, Judge Berger ordered the government to make the devices available to the defense over the weekend at the local FBI office so the defense can try to do the work it needs to do to authenticate its calls.

— The judge agreed to admit somewhat redacted copies of newspaper articles from The Charleston Gazette, the Charleston Daily Mail and the New York Times into evidence. Ruby had argued they were needed to help the government show the kind of information that stock market investors were seeing about Massey after the Upper Big Branch Mine Disaster. Defense lawyer Bill Taylor had argued the stories were hearsay and also contained information — such as the number of workers who had died over the years in Massey mines — was unfairly prejudicial to Blankenship.

Continue reading…

Defense lawyers urge judge to toss Blankenship case


Photo by Joel Ebert

I’m just back from the federal courthouse in downtown Charleston, where there was a flurry of interesting moves this afternoon in the criminal trial of former Massey Energy CEO Don Blankenship.

First, Assistant U.S. Attorney Steve Ruby wrapped up his re-direct examination of FBI Special Agent Jim Lafferty. One key point that was made concerned all of those daily violation reports (see here, for example) on Upper Big Branch and other Massey mines, those reports may not have included all of the specific details of the violations, they certainly included an estimate of the potential monetary fine for each violation. Ruby brought that fact out to try to convince jurors that the real reason Blankenship was getting those reports wasn’t because he was so concerned about making mine safety — but that he was worried about the rising costs of the violations.

Then, as we mentioned previously, U.S. District Judge Irene Berger said that she would not make a decision until Monday about whether the Blankenship defense team can play some Blankenship phone call recordings that it believes highlight the former CEO’s concern about safety.

With the actual completion of defense lawyer James Walls’ cross-examination of Lafferty technically on hold, pending the phone recording decision, the government was not really able to rest its case.  So at about 3 p.m., Judge Berger sent the jury home for the day.

Then, Judge Berger allowed defense lawyer Eric Delinsky an opportunity to argue the defense’s Rule 29 motion for a judgment of acquittal, which is basically an argument that the government has not presented adequate evidence for the jury to find Blankenship guilty of the charges against him. Ruby responded and Delinsky replied. Those arguments lasted until about 4:30. We’ll have more on those soon on the Gazette-Mail’s Blankenship trial website.

Judge Berger then gave the parties a ruling on a document the government wanted brought into evidence, Government’s Exhibit 445, which is a compilation of MSHA data comparing citations and civil penalties for Massey and other coal producers.  As they had with another government exhibit, defense lawyers had raised a variety of objections, including relevance and hearsay — and whether the defense had adequate notice that this data was going to be presented to the jury. Judge Berger referred back to her previous ruling in that other exhibit in admitting 445.

The judge also allowed Ruby to continue arguing that she should allow previous guilty pleas by Massey subsidiaries Aracoma Coal and White Buck Coal, and a shareholder suit filed against Massey after the deaths of two miners at Aracoma, into the trial. The judge did not rule yet on that request.

Judge Berger did not appear to get around to allowing Walls to conduct some closed-door “in camera” cross-examination of Lafferty — the judge hasn’t explained the purpose of this testimony or why it needs to happen in private — but she did tell the lawyers to be in court at 9 a.m. tomorrow for some “housekeeping” matters. The jury won’t return until 9 a.m. Monday.

R. Booth Goodwin, Steve Ruby

There’s a potentially big legal dispute brewing in the Don Blankenship criminal trial. It broke out this morning during the cross-examination by defense lawyer James Walls of FBI Special Agent Jim Lafferty.

Toward the end of his cross-examination, Walls proposed to play for the jury and ask Lafferty questions about one of the Blankenship telephone calls that defense lawyers indicated to the court earlier this week that they planned to use in their case (see earlier blog post here and Gazette-Mail story here).

Assistant U.S. Attorney Steve Ruby objected, saying the government believes the calls are hearsay. Walls said they fall within a recognized hearsay exception.  A lengthy bench conference followed — with Blankenship often standing at the bench with his attorneys — and the judge then gave the jury its morning break.

A bit of the backstory here from out story in today’s print edition:

Prosecutors had argued that the telephone calls were inadmissible hearsay and that federal court rules do not allow an exception for “self-serving, exculpatory statements made by a party which are being sought for admission by that same party.” Prosecutors noted that the recordings were made by Blankenship himself “when he chose to press the button on his office recording device.”

Berger agreed with prosecutors, granting their motion during a hearing on the eve of trial.

Defense lawyers argue in their new court filing that the recordings are admissible because they are being offered not to prove the truth of what was said, but to show Blankenship’s “state of mind” at the time the recordings were made. They say that the calls at issue were made long before the period covered by Blankenship’s indictment — January 2008 through April 2010 — and that therefore Blankenship “had not opportunity or reason to reflect or to misrepresent his state of mind in these calls.”

Now, we don’t know exactly what the government or the defense argued, because so much of the discussion took place in a private bench conference.

But when the appointed time to reconvene came, Judge Berger came into the courtroom, but with the jury out of the room. The judge indicated that she is inclined to allow the defense to play its phone calls, if they fall within a hearsay exception for statements that would indicate Blankenship’s “state of mind.”

Ruby raised another objection, questioning how the defense would authenticate the calls — government lawyers had called a different FBI agent who testified about checking the recordings against the devices Blankenship used to record them and also called Blankenship’s former secretary to identify his phone on the recordings.  And, Ruby argued that the government needs more time to review the calls before being able to fully articulate any other objections.

Judge Berger gave the government until Monday morning to listen to the calls and pose any additional complaints about having the jury hear them.